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FACTS:                    

Two brothers owned the vacant residential lot as tenants in common.  One of the brothers passed away several years ago.  His estate was not subject to probate and the lot ownership was not addressed.  In light of the hot market, the surviving brother wants to list and sell the property and has approached the listing agent for that purpose. 

ISSUE:                      

May the listing agent list the property for sale?

ANSWER:                

See Discussion. 

DISCUSSION:

Holding title as tenants in common, does not have a survivorship feature.  In other words, in the event that one owner passes away, the deceased owner’s interest does not automatically convert to the survivor’s interest.  Rather, the interest becomes a part of the deceased owner’s estate and must be dealt with through probate.  The listing agent should advise the surviving brother to clean up the ownership issue before he lists the property for sale.  

Note: Had the brothers held title as joint tenants with right of survivorship, the deceased brother’s interest in the property would have conveyed to the surviving brother such that probate may not have been necessary.